Sisson v. Jankowski, et a l . CV-00-479-M 01/29/02
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Thomas K. Sisson,
Plaintiff
v. Civil No. 00-479-M
Opinion No. 2002 DNH 014
Shari Jankowski, Escruire,
and Wiqqin & Nourie, P.A.,
Defendants
O R D E R
In what might fairly be characterized as a legal malpractice
action, plaintiff alleges that he sustained substantial damages
as a result of defendants' failure to have their client
(plaintiff's brother). Dr. Warren Sisson, execute his will in a
reasonable and timely fashion. As a result of that alleged
negligence. Dr. Sisson died intestate. Consequently, says
plaintiff. Dr. Sisson's testamentary intent was not carried out
and, rather than passing entirely to plaintiff. Dr. Sisson's
estate was instead divided evenly among three groups of
beneficiaries (including plaintiff).
Pending before the court is defendants' renewed motion to
dismiss. In the alternative, defendants ask the court to certify
the dispositive question of law - whether New Hampshire common
law recognizes the cause of action advanced by plaintiff - to the
New Hampshire Supreme Court.
Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of
limited inquiry, focusing not on "whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Scheuer v. Rhodes, 416 U.S.
232, 236 (1974). In considering a motion to dismiss, the court
must accept as true the facts alleged in the complaint and
construe all reasonable inferences in favor of the non-moving
party. See Bessette v. Avco Financial Services, Inc.,
230 F.3d
439, 443 (1st Cir. 2000), cert. denied,
121 S.Ct. 2016 (2001).
See also The Dartmouth Review v. Dartmouth College,
889 F.2d 13,
15 (1st Cir. 1989). Dismissal is appropriate only if "it clearly
appears, according to the facts alleged, that the plaintiff
cannot recover on any viable theory." Langadinos v. American
Airlines, Inc.,
199 F.3d 68, 69 (1st Cir. 2000) .
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Background
Accepting the allegations in plaintiff's verified complaint
as true, the material facts appear as follows. In December of
1998, Dr. Warren Sisson retained defendants to prepare his will
and other estate planning documents (e.g., durable power of
attorney, living will, advanced directives for health care,
etc.). According to plaintiff. Dr. Sisson informed Attorney
Jankowski that he was suffering from bladder and prostate cancer,
did not want to die intestate, and, therefore, wished to prepare
a will that would pass his entire estate to his brother, the
plaintiff. Dr. Sisson is alleged to have said that he was
particularly interested in ensuring that none of his estate pass
to his other brother, John Sisson, from whom he was estranged.
Attorney Jankowski prepared a will and other estate planning
documents in accordance with Dr. Sisson's instructions and, in
mid-January, 1999, mailed those documents to him for his review
and execution. Dr. Sisson had, however, suffered an injury in
his home in mid-January and, therefore, did not receive the
documents until January 22, 1999, when a neighbor delivered them
to him at a nursing home. Three days later, plaintiff says he
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contacted Attorney Jankowski to tell her that Dr. Sisson wanted
to finalize his estate planning documents quickly because of his
deteriorating condition.
On February 1, 1999, Attorney Jankowski and two employees of
the defendant law firm, Wiggin & Nourie, P.A., visited Dr. Sisson
in the nursing home for the purpose of witnessing his execution
of those documents. At that time. Dr. Sisson executed all of the
estate planning documents prepared by Attorney Jankowski, except
his will. After Jankowski raised an issue regarding whether what
had been prepared as the final executable version of the will
should nevertheless include provisions for a contingent
beneficiary. Dr. Sisson expressed his desire to insert such a
clause, thereby providing that his estate would pass to a charity
in the event plaintiff predeceased him.
According to plaintiff, by the end of that February 1, 1999,
meeting. Dr. Sisson's testamentary intent was clear: the
unexecuted will accurately expressed his intent to pass his
entire estate to plaintiff, but simply omitted provision for a
contingent beneficiary. Nevertheless, rather than (a) modifying
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the will immediately by inserting a brief, hand-written amendment
providing for a contingent beneficiary, or (b) modifying the will
at her office and returning later that day to secure Dr. Sisson's
signature under the requisite formalities, or (c) advising Dr.
Sisson to execute the will as drafted to avoid the risk of dying
intestate (which he plainly wished to avoid) and simply arranging
to have him subsequently execute a codicil providing for the
contingent beneficiary. Attorney Jankowski left a "seriously ill"
client without obtaining his signature to the will. Verified
Complaint, at para. 4.
Three days later, on February 4, 1999, Attorney Jankowski
returned with the revised will. It was not executed, however,
because Attorney Jankowski did not believe Dr. Sisson was then
competent to execute it. She left without securing his signature
and, according to plaintiff, told Dr. Sisson to contact her when
he was ready to sign the will.
On February 13, and again on February 15, plaintiff says he
spoke with an attorney at Defendant Wiggin & Nourie "to discuss
Attorney Jankowski's inaction regarding the will." Verified
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Complaint, at paras. 34-35. According to plaintiff, that
attorney said he had "spoken to members of his firm about the
situation." Id., at para. 35. Nevertheless, plaintiff says that
after February 4, 1999, Attorney Jankowski made no attempt to
determine whether Dr. Sisson had regained sufficient testamentary
capacity to execute his will.
On February 16, 1999, Dr. Sisson died intestate. As a
consequence, his $2,000,000 estate did not pass entirely to
plaintiff, as Dr. Sisson had intended. Instead, it was divided
among plaintiff. Dr. Sisson's other (estranged) brother, and the
children of a third (deceased) brother.
The facts presented in this case are somewhat unique. There
is no dispute as to the decedent's testamentary intent: he wanted
to avoid dying intestate and wished his entire estate to pass to
plaintiff. Nor is there any claim that his intent was frustrated
by defendants' having negligently prepared his will. Instead,
plaintiff asserts that if defendants had fulfilled their
professional and contractual obligations to Dr. Sisson in a
reasonable and non-negligent manner, he would not have died
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intestate. And, says plaintiff, he should be permitted to
recover damages against defendants as an intended beneficiary of
their relationship with Dr. Sisson.
Discussion
Defendants say they owed plaintiff no legally cognizable
duty of care and, therefore, assert that his complaint fails to
state a cause of action under New Hampshire law. Although
defendants concede that they would be liable to Dr. Sisson's
intended beneficiary if Dr. Sisson had actually executed a will
negligently prepared by them and that will failed to effect his
testamentary intent, they claim that New Hampshire law does not
recognize any cause of action against an attorney (or his or her
law firm) for having negligently failed to secure a client's
timely execution of a draft will. In other words, defendants say
they cannot be held liable (at least not to plaintiff) for
alleged negligence that proximately caused their client to die
intestate (thereby frustrating the client's obvious desire to
avoid such a situation). Accordingly, defendants say plaintiff's
claims must be dismissed.
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At the core of defendants' argument is the assertion that,
as a matter of law, an attorney owes no duty of care to intended
beneficiaries of a draft will, unless and until that draft will
is executed. To prevail, defendants must demonstrate that there
are no circumstances recognized by New Hampshire law, no matter
how compelling, under which an attorney might be liable for
having proximately caused his or her client's intestacy by
failing to secure the client's timely execution of a will.
Plaintiff, on the other hand, asserts that New Hampshire law
would surely recognize that, under circumstances such as those
presented here, an attorney is liable to intended beneficiaries
for having negligently failed to have a client execute his or her
finalized will in a reasonable and timely fashion.
In Simpson v. Calivas, 139 N.H. 1 (1994), the New Hampshire
Supreme Court held that an attorney who drafts a testator's will
owes a duty of care to the testator's intended beneficiaries.
The overwhelming majority of courts that have
considered this issue have found that a duty runs from
an attorney to an intended beneficiary of a will.
We agree that although there is no privity between a
drafting attorney and an intended beneficiary, the
obvious foreseeability of injury to the beneficiary
demands an exception to the privity rule.
Id., at 5-6. The court then concluded that, "where, as here, a
client has contracted with an attorney to draft a will and the
client has identified to whom he wishes his estate to pass, that
identified beneficiary may enforce the terms of the contract as a
third-party beneficiary."
Id., at 7.
Relying heavily on the opinion in Simpson, plaintiff says he
is the intended beneficiary of the contract between defendants
and Dr. Sisson, pursuant to which defendants agreed to prepare
Dr. Sisson's estate planning documents; that Dr. Sisson clearly
identified plaintiff as the sole intended beneficiary of his
estate; and that defendants' negligence in failing to secure Dr.
Sisson's timely execution of his will proximately and foreseeably
caused plaintiff to sustain readily identifiable damages for
which he is entitled to obtain compensation.
Defendants, on the other hand, insist that the circumstances
presented in this case are distinguishable from those in Simpson,
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saying the Simpson court "recognized only that an attorney owes a
duty to a named beneficiary in an executed will." Defendants'
memorandum (document no. 13) at 7 (emphasis in original).
Because Dr. Sisson never executed the draft will initially
presented by Attorney Jankowski, or the revised version
incorporating the contingent beneficiary, defendants assert that
neither she nor her law firm owed (or could have breached) any
duty to plaintiff. To hold otherwise, argue defendants, would
create an unworkable situation in which attorneys would find it
necessary to pressure clients to "complete and execute estate
planning documents summarily," in contravention of an attorney's
"primary responsibility to ensure that the client understands the
available options and the legal and practical implications of
whatever course of action is ultimately chosen." Id., at 8
(quoting Krawczvk v. Stinqle,
208 Conn. 239, 246-47 (1988)) .
In Krawczvk, the Connecticut Supreme Court addressed a
situation similar to that presented in this case and observed:
[CJourts have held that the intended beneficiary has a
cause of action against an attorney who failed to draft
a will in conformity with a testator's wishes; failed
to supervise the proper execution of a will; or failed
to advise a client of the consequences of not revising
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a will; or of using one type of estate planning
instrument. The question before us is whether such
liability should be further expanded to encompass
negligent delay in completing and furnishing estate
planning documents for execution by the client.
Id., at 245 (citations omitted). Ultimately, the court concluded
that, "the imposition of liability to third parties for negligent
delay in the execution of estate planning documents would not
comport with a lawyer's duty of undivided loyalty to the client."
Id., at 246.
The Connecticut Supreme Court is not alone in that regard.
Other state courts have agreed that asserted beneficiaries of an
unexecuted will have no viable claims against the decedent's
attorney, notwithstanding the fact that those states, like New
Hampshire, recognize that an intended beneficiary of an executed
will may have a cause of action against the drafting attorney if,
due to the attorney's negligence, the will fails to properly
implement the client's testamentary intent. See, e.g.,
Chatterjee v. Glynn, 1 Mass. L. Rptr. 483,
1994 WL 879735 at *4
(Mass. Super. 1994) ("[CJlaims that [the defendant attorney]
failed to act in a 'timely' fashion or claims that he failed to
have the decedent execute the will when he was competent to do so
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seem well beyond the reach of any claims the Beneficiaries should
be permitted to assert."); Babcock v. Malone, 760 So.2d 1056,
1056-57 (Fla. A p p . 2000) (concluding that an attorney could not
be held liable to intended beneficiaries for having allegedly
failed to secure decedent's timely execution of a will).
The majority of courts to confront the issue have concluded
that imposing liability to intended beneficiaries of an
unexecuted will would interfere with an attorney's obligation of
undivided loyalty to his or her client, the testator or
testatrix. And, as the Connecticut Supreme Court observed,
"[cjourts have refrained from imposing liability when such
liability had the potential of interfering with the ethical
obligations owed by an attorney to his or her client." Krawczyk,
208 Conn. at 246. The New Hampshire Supreme Court recently
echoed that concern in MacMillan v. Scheffv, __ N.H. __,
2001 WL
1640113 (Dec. 24, 2001), holding that, absent privity. New
Hampshire common law does not impose liability upon an attorney
to third parties when doing so "would interfere with the
undivided loyalty which the attorney owes his client and would
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detract from achieving the most advantageous position for his
client." Id., at *2.
The Massachusetts Supreme Judicial Court also recently
discussed the potential risks associated with imposing liability
on attorneys under circumstances such as those presented in this
case.
We have previously noted that "in preparing a will
attorneys can have only one client to whom they owe a
duty of undivided loyalty." A client who engages an
attorney to prepare a will may seem set on a particular
plan for the distribution of her estate, as here. It
is not uncommon, however, for a client to have a change
of heart after reviewing a draft will. Confronting a
last will and testament can produce complex
psychological demands on a client that may require
considerable periods of reflection. An attorney
frequently prepares multiple drafts of a will before
the client is reconciled to the result. The most
simple distributive provisions may be the most
difficult for the client to accept. Considerable
patience and compassion can be required of attorneys
drafting wills, especially where the client seeks
guidance through very private and sensitive matters.
If a duty arose as to every prospective beneficiary
mentioned by the client, the attorney-client
relationship would become unduly burdened. Attorneys
could find themselves in a quandary whenever the client
had a change of mind, and the results would hasten to
absurdity. The nature of the attorney-client
relationship that arises from the drafting of a will
necessitates against a duty arising in favor of
prospective beneficiaries.
13
Miller v. Mooney, 431 Mass. 57, 63-64 (2000) (citations omitted)
The reasoning articulated in the opinions cited above,
particularly in light of the New Hampshire Supreme Court's recent
opinion in MacMillan, is compelling. Ordinarily, then, this
court would be inclined to grant defendants' motion to dismiss,
predicting that the New Hampshire Supreme Court would, if
presented with the issue, conclude that plaintiff's complaint
fails to state a viable cause of action. Nevertheless, the court
is aware of New Hampshire's long tradition of eschewing strict
and inflexible application of the privity rule in favor of a more
case specific inquiry into whether the injuries alleged to have
been sustained by the plaintiff were a reasonably foreseeable
consequence of an attorney's (or other professional's) deviation
from professional standards of care. See Simpson, supra. See
also Spherex, Inc. v. Alexander Grant & Co.,
122 N.H. 898, 903
(1982) ("Our reluctance to apply the privity rule has extended to
allowing a proper plaintiff to recover for mere financial loss
resulting from the negligent performance of services.") (citation
omitted). Thus, "reasonable foreseeability" has long been a
critical factor in the evolution of New Hampshire common law and
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the court has frequently invoked Chief Justice Cardozo's opinion
in Palsqraf v. Long Island R. Co., 248 N.Y. 339, 344,
162 N.E.
99, 100 (1928), for the proposition that the "risk reasonably to
be perceived defines the duty to be obeyed." See, e.g., lanelli
v. Burger King Corp.,
145 N.H. 190, (2000) ("In large part our
definition and application of the legal concepts of duty and
foreseeability derive from Chief Justice Cardozo's majority
opinion in Palsgraf.). See also Spherex, 122 N.H. at 905; Millis
v. Fouts,
144 N.H. 446, 448 (1999); Manchenton v. Auto Leasing
Corp.,
135 N.H. 298, 304 (1992).
Under the facts alleged in this case, one would be hard
pressed to say that the injuries sustained by plaintiff were not
a reasonably foreseeable consequence of defendants' allegedly
negligent failure to secure Dr. Sisson's timely execution of his
will. The key point, however, is whether, in New Hampshire,
public policy concerns intervene to systemically block imposition
of liability to intended beneficiaries in cases involving
negligent delay in procuring the execution of a will.
15
This case is not, however, easily consigned to that category
of routine cases in which public policy concerns counsel against
imposing liability on an attorney for alleged negligence
preceding the execution of a will. Indeed, it is not entirely
clear, at least under the facts as alleged in this case, that
public policy concerns are directly at odds with imposing the
type of liability advocated by plaintiff. To be sure, there are
certainly situations in which legitimate public policy concerns
weigh against creating an environment in which attorneys are
pressured to rush clients when formulating and executing an
estate plan. In the circumstances alleged by plaintiff, however,
there is perhaps an equally compelling public policy interest in
encouraging attorneys to act with diligence and reasonable
promptness to ensure that their clients do not die intestate,
which, after all, is the very purpose for which the attorneys
were retained in the first place. And, importantly, that
interest is not universally at odds with those of undisputed
intended beneficiaries, who share an interest in seeing that the
client does not die intestate contrary to his or her wishes, and
that the desired testamentary disposition (assuming it has been
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demonstrably finalized) is not thwarted due to an attorney's
negligence.
Consequently, because the New Hampshire Supreme Court has
not addressed the dispositive legal issue, it might: (a) decline
to adopt the majority view wholesale and, instead, recognize a
limited common law cause of action when an undisputed intended
direct beneficiary of a finalized but unexecuted will sustains
reasonably foreseeable damages as a proximate result of an
attorney's negligent failure to obtain the testator's timely
execution of the will; or (b) recognize an exception to the
general rule when, as here, it appears that the public policy
concerns underlying the absolute bar are not implicated (or, at a
minimum, are less compelling) because there is no conflict
between at least some of the attorney's obligations to her client
(i.e., prepare a will that represents the client's testamentary
intent and act reasonably to insure that the client has the
opportunity to execute that will in a timely manner to avoid
intestacy) and the best interests of the intended beneficiaries
of the will (i.e., act reasonably to afford the client an
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opportunity to avoid dying intestate and to implement his or her
desired plan of disposition).
When, in situations such a this, a federal court is called
upon to apply state law, it must "take state law as it finds it:
'not as it might conceivably be, some day; nor even as it should
be.'" Kassel v. Gannett Co., Inc., 875 F.2d 935, 950 (1st Cir.
1989) (quoting Plummer v. Abbott Laboratories,
568 F.Supp. 920,
927 (D.R.I. 1983)). When state law has been authoritatively
interpreted by the state's highest court, this court's role is
straightforward: it must apply that law according to its tenor.
See Kassel,
875 F.2d at 950. When the signposts are somewhat
blurred, the federal court may assume that the state court would
adopt an interpretation of state law that is consistent with
logic and supported by reasoned authority. See Moores v.
Greenberg,
834 F.2d 1105, 1107 n.3 (1st Cir. 1987). However,
this court is and should be hesitant to blaze new, previously
uncharted state-law trails. Accordingly, when a dispositive
legal question is novel and the state's law in the area is
unsettled, certification is often appropriate. See Lehman Bros,
v. Schein,
416 U.S. 386, 391 (1974); Arizonans for Official
18
English v. Arizona, 520 U.S. 43, 76 (1997). See also Acadia Ins.
Co. v. McNeil,
116 F.3d 599, 605 (1st Cir. 1997).
Expansive reading of New Hampshire's common law,
particularly when a novel cause of action potentially implicates
substantial public policy concerns, is a realm best occupied by
the New Hampshire Supreme Court. Because that court has yet to
address the discrete issue presented in this case, and because it
is unclear how it would likely resolve that issue in the context
of the facts as pled, the fairest and most prudent course of
action at this stage is to certify the question. Otherwise, the
case would either be dismissed (perhaps wrongly) and the Court of
Appeals would likely have to revisit the question of
certification, or extended and expensive litigation would
proceed, perhaps unnecessarily, on a claim of questionable
viability. Neither situation would represent an efficient use of
judicial or the litigants' resources.
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Conclusion
Defendants' motion to dismiss or, in the alternative, for
certification to the New Hampshire Supreme Court (document no.
13) is granted in part and denied in part. To the extent it
seeks certification to the New Hampshire Supreme Court of the
legal question presented in this case, the motion is granted. In
all other respects, it is denied. Plaintiff's motion to compel
(document no. 12) is denied without prejudice to refiling (if
appropriate) after the Supreme Court has addressed the certified
question.
The court proposes to certify the following question of law
to the New Hampshire Supreme Court:
Whether, under New Hampshire law and the facts as pled,
an attorney's negligent failure to arrange for his or
her client's timely execution of a will (thereby
proximately causing the client to die intestate) gives
rise to a viable common law claim against that attorney
by an undisputed intended beneficiary of the unexecuted
will.
See generally N.H. Supr. C t . R. 34. If any party objects to the
form of the question the court proposes to certify, a written
objection, along with suggested alternative language, shall be
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filed on or before February 2 2 ,2002. The court proposes to
submit to the Supreme Court, as its statement of facts, the facts
as presented in this order. If any party objects or wishes the
court to supplement that statement of facts, that party shall
submit an objection and/or proposed statement of supplemental
facts by the same date. The parties should, of course, bear in
mind that because defendants' pending motion is one to dismiss,
the court must assume all properly alleged facts in plaintiff's
verified complaint to be true.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
January 29, 2002
cc: Ronald L. Snow, Esq.
Andrew D. Dunn, Esq.
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